Citation Nr: 1410131 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-27 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for anterior subglenoid dislocation, right shoulder with degenerative arthritis. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1988 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran a rating in excess of 20 percent for an anterior subglenoid dislocation, right shoulder with degenerative arthritis. The Board finds that the TDIU claim, not separately adjudicated as part of this appeal, is nevertheless part of the appeal for the reasons described below. The issue of reopening the claim for service connection for a neurological condition of the right upper extremity has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that his service connected right shoulder disability has increased in severity since his last examination in June 2010. During his February 2012 hearing he contended that his shoulder has become weaker over the years and it will go numb. The Veteran also stated that his injury is affecting his entire arm and he drops items often because he cannot hold onto them. He stated that on average his pain rates at a 7 or 8 out of 10. He contends that his symptoms are worse than in 2010 when he had his VA examination, due to numbness and involuntary shaking. In light of the Veteran's claims as to an increase in the severity of his disability, an additional medical examination is required prior to appellate review. See VAOPGCPREC 11-95 (April 7, 1995). In addition, the Veteran indicated at his hearing that he had filed a Social Security Administration compensation claim related to his right shoulder. These records should also be obtained. 38 C.F.R. § 3.159(c)(2) (2013). The Veteran also contends that since his shoulder was first dislocated in 1988, he has had trouble keeping a job and the longest he has worked at one place is five years. He stated that he has not worked since June 2009 and filed for social security disability. As an initial matter, the Board notes that it has determined herein that a claim for a TDIU is part of the pending increased rating claim, and the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). See also Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, on remand, he should be sent an appropriate notification letter. Accordingly, the case is REMANDED for the following actions: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) letter on the issue of entitlement to a TDIU. 2. Request, directly from the Social Security Administration, copies of any adjudication on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If, after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. The Veteran should be scheduled for a VA medical examination for opinions as to the current nature and extent of his service-connected right shoulder disability and the effect of his service-connected disabilities on his employment status. The claims file, including any relevant Virtual VA or VBMS records, must be reviewed in conjunction with the examination. As to the right shoulder, the examiner should identify all present manifestations of service-connected disability. Complete range of motion studies must be provided with discussion as to any additional limitation of motion due to pain, weakness, fatigability, and incoordination or pain on movement of a joint, including use during flare-ups. The examiner must next offer an opinion as to whether the Veteran's service-connected disabilities (adjustment disorder, a right shoulder disorder, a left shoulder disorder, and a right shoulder scar) render him unable to secure or follow a substantially gainful occupation, taking into consideration his level of education, special training, and previous work experience, but not his age or impairment caused by non-service connected disabilities. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disorders, given his current skill set and educational background. All opinions expressed must be accompanied by supporting rationale. 4. After completing the requested action, and any additional notification and/or development warranted, the RO/AMC must readjudicate the Veteran's increased rating claim and adjudicate the TDIU claim. If either benefit sought on appeal remains denied, bearing in mind that the TDIU claim is considered to be on appeal currently, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ A.C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).